Motor Accidents Insurance Board v Dare
[1992] TASSC 117
•24 September 1992
Serial No B39/1992
List “B”
CITATION: Motor Accidents Insurance Board v Dare [1992] TASSC 117; B 39/1992
PARTIES: MOTOR ACCIDENTS INSURANCE BOARD
v
DARE, Joseph Bernard
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NOS: LCA 46/1992
DELIVERED: 24 September 1992
HEARING DATES: 15 September 1992
JUDGMENT OF: Zeeman J
CATCHWORDS:
Vehicles and Traffic—Statutory compensation in respect of motor vehicle accident—Employed person's allowance—Wholly disabled from engaging in any employment or occupation for which the injured person would otherwise be reasonably suited by education, training, experience or ability—Sufficiency of evidence to establish entitlement.
Motor Accidents (Liabilities and Compensation) Regulations, 1980, Sch II, PtV, par2(3)(b).
REPRESENTATION:
Counsel:
Appellant: H J Kable
Respondent: G J Faulds
Solicitors:
Appellant: Gunson Pickard & Hann
Respondent: Dobson Mitchell & Allport
Judgment category classification:
Court Computer Code:
Judgment ID Number: B391992
Number of pages: 7
Serial No B391992
List "B"
File No LCA 46/1992
MOTOR ACCIDENTS INSURANCE BOARD v JOSEPH BERNARD DARE
REASONS FOR JUDGMENT ZEEMAN J
24 September 1992
This appeal is brought pursuant to the provisions of the Motor Accidents (Liabilities and Compensation) Act 1973, ("the Act") s28(6) against a determination of the Motor Accidents Compensation Tribunal upon a reference to it by the respondent of a determination made by the appellant. The reference to the Tribunal specified the determination referred to it as being "the refusal of the [appellant] to make payments by way of scheduled benefits beyond the 5th day of July 1991". The expression "scheduled benefits" is defined in the Act, s2(1) as being "the benefits specified in the regulations". The relevant regulations are the Motor Accidents (Liabilities and Compensation) Regulations 1980 ("the Regulations"). Schedule 2 to the Regulations provides for a wide variety of scheduled benefits including medical benefits, funeral benefits and disability allowances of various types. It is clear that the determination of the appellant related to one particular type of benefit, that being an employed person's allowance of the type provided for by the Regulations, PtV, par2(3)(b). It was upon that basis that the reference was conducted before the Tribunal and the appeal was conducted before me.
Relevant provision of the Regulations, PtV are as follows:
"1–(1) In accordance with this Part periodical allowances are payable to any person who receives injury as a result of an accident (in this Part referred to as 'the injured person').
(2) A disability allowance may be –
(a) an employed person's allowance;
...
2–(1) An injured person is entitled to an employed person's allowance –
(a) if, at the time of the accident, he was engaged in an employment or occupation for remuneration or profit; or
(b) if, at that time, he had attained the age of 18 years and had not attained the age of 65 years and, during the period of 12 months preceding the day of the accident, he was so engaged for periods that amount, in the aggregate, to not less than 26 weeks.
...
(3) An employed person's allowance is payable –
(a) for such periods, falling within the period of 104 weeks beginning on the day of the accident, during which the injured person is wholly disabled from engaging in his usual employment or occupation as a consequence of the injury; and
(b) for such other periods, falling within the prescribed period, during which the injured person is, by reason of the injury, wholly disabled from engaging in any employment or occupation for which he would otherwise be reasonably suited by education, training, experience, or ability.
...
(7) Where, in respect of any period in respect of which an employed person's allowance would, apart from this subparagraph, be payable to a person, that person receives remuneration or profit from any employment or occupation, the amount of that allowance shall be reduced by the amount of that remuneration or profit and, if the amount of that remuneration or profit exceeds the amount of the allowance, the allowance shall not be payable in respect of that period.
(8) For the purposes of this paragraph, 'the prescribed period' is a period of 156 weeks beginning at the expiration of the period referred to in subparagraph (3) (a)."
The respondent was injured in a motor vehicle accident on 5 July 1989. It has always been accepted that the respondent satisfied the requirements of par2(1). Initially the appellant accepted, and thereafter the Tribunal determined, that as a consequence of the respondent's injury, he was wholly disabled from engaging in his usual employment or occupation. Accordingly, he was paid an employed person's allowance for the whole of the period of 104 weeks referred to in par2(3)(a). That period ended upon, but included, 2 July 1991. Thereafter the respondent had no further entitlement to an employed person's allowance under par2(3)(a) because of the expiry of the relevant period of 104 weeks. Nevertheless, the respondent was entitled to continue to receive an employed person's allowance if he could bring himself within par2(3)(b). It appears that he did not persuade the appellant that he could bring himself within that provision so that it declined to continue paying the employed person's allowance. Having heard the appeal, the Tribunal, constituted by the chairman thereof, concluded that the respondent did come within that provision. The learned chairman delivered reasons on 13 November 1991 indicating that the reference ought to be allowed and that he would hear counsel as to the precise form of the determination. Before the formal determination was made the learned chairman heard further argument and delivered further reasons on 22 May 1992. The formal determination was made on 2 July 1992 and was in the following terms:
"1 THAT the Reference to the Tribunal be allowed.
2 THAT by agreement the Applicant is entitled to the sum of $20,910.74 as of the 4th June, 1992.
3 THAT the Respondent pay the Applicant's taxed costs of an incidental to the Reference based on Table A of the Supreme Court Scale.
4 THAT there be liberty to apply."
Counsel told me that the reference to the agreement in par2 of the determination did not reflect any agreement on the part of the appellant that the respondent was entitled to the sum referred to but rather an agreement, conveyed to the learned chairman, that as a matter of arithmetical calculation the reasons given by the learned chairman led to the conclusion that the amount of employed person's allowance which had accrued due as at 4 June 1992, was in the sum therein referred to. I have previously expressed some doubts about the power of the Tribunal to make a determination in the form set forth in par2 (R v Southee ex parte Motor Accidents Insurance Board No 521991). However, my conclusions otherwise as to the appropriate disposition of this appeal make it unnecessary to consider that aspect.
The notice of appeal sets forth four grounds. Grounds 2 and 4 assert that the learned chairman erred in law by not applying the relevant onus of proof. In my view, there is no basis for any such complaint. These grounds rely upon an observation made by the learned chairman in the course of giving the reasons for his determination when, after referring to evidence given by two medical practitioners and a psychologist called by the respondent, he said that "this evidence has not been rebutted by the Board and I accept it." The learned chairman was doing no more than stating his understanding of what had occurred during the course of the hearing before him. If it was the fact that those persons had given evidence during the course of which they expressed opinions consistent with one another (which appears to have been the view of the learned chairman) then the fact that the appellant had called no evidence to the contrary of those opinions was a relevant consideration to a determination as to whether those opinions ought to be accepted. What the learned chairman said amounted to no more than that simple proposition.
Principally, this appeal was argued by reference to ground 1 which is in the following terms:
"1 That the learned Chairman erred by finding, contrary to the evidence before him, that the medical evidence of Dr Jackson, Dr Chambers and Mrs Fitzgerald was to the effect that the Respondent was not fit to return to any employment until he had undergone rehabilitation and assessment."
The learned chairman, in the course of the reasons he delivered on 13 November 1991 (and there is nothing relevant in the supplemental reasons delivered on 22 May 1992 which appear to deal with argument put to the learned chairman which could have had no conceivable relevance to the outcome of the reference before him) said as follows:
"As to whether the applicant is wholly disabled as a result of the injury from engaging in any employment or occupation for which he would otherwise be reasonably suited by education, training, experience or ability, this must be determined from all the evidence now before me and taken in context.
I accept the applicant's evidence that he continues to experience symptoms in his neck, shoulder and arms in any of the movements referred to by Dr Chambers and that such symptoms are exacerbated if repetition is required.
The medical evidence of Dr Jackson, Dr Chambers and Mrs Fitzgerald is consistent in the view that the applicant is not fit to return to any employment until he has undergone rehabilitation and assessment. This evidence has not been rebutted by the Board and I accept it. I find that he is unfit for employment or occupation at this stage as prescribed in Clause 2(3)(b).
The applicant is willing to undergo such treatment, but his request was refused by the Board. In my view he should not be compelled to risk further injury and disability by engaging in any employment before such rehabilitation and assessment. It is reasonable that he follows the advice of his medical practitioners and avoid symptoms which might become chronic."
Earlier in the course of those reasons the learned chairman had said that the evidence satisfied him that the respondent remained wholly disabled from engaging in his usual employment as a bricklayer's labourer and counsel for the appellant expressly disclaimed any challenge to that conclusion. The learned chairman's statement that the evidence of Dr Jackson, Dr Chambers and Mrs Fitzgerald was "consistent in the view that the applicant is not fit to return to any employment until he has undergone rehabilitation and assessment", I construe as a statement that each of those witnesses expressed that view in the course of his or her evidence. In each case that evidence included oral evidence and a written document or documents tendered and adopted during the course of that evidence. Counsel for the appellant submitted that the evidence of those three witnesses fell far short of expressing a consistent view that the respondent was not fit to return to any employment until he had undergone rehabilitation and assessment. It is therefore necessary to examine the relevant evidence.
Dr Jackson examined the respondent on 4 June 1991 and on 3 July 1991 furnished a report, which was in evidence, in which he expressed the following opinions:
"It is my opinion that Mr Dare has suffered a discogenic type injury to his cervical spine. This view is supported by the results of his MRI scan. The ongoing scenario in terms of management, would, I believe, include the following possible further investigations in terms of diagnostic discography with a view to undergoing neck surgery. Mr Dare has, in the past, been adamant that he does not want surgical intervention.
If this course of action is not pursued, then it would be reasonable for him to undergo a full functional assessment with a view to redeploying him within the workforce. In terms of any activity he might be able to otherwise undertake, I would take note of the functional assessment, but in general terms it would be work of a lighter nature which did not involve any heavy physical activity, certainly in the first instance.
In terms of a long term prognosis, I am unable to be particularly definite in relation to his long term prospects. The situation will resolve itself in time, one way or the other, and I would expect us to know his ongoing situation in the next 6 – 12 months, ie if he deteriorates and his pain becomes worse, then I would countenance surgical intervention. On the other hand if he improves, or is able to manage alternative employment, then this situation may be able to be avoided. I would reiterate my strong support for assessment, particularly a functional assessment which could be carried out by one of the rehabilitation providers, to whom I referred him."
Dr Jackson also prepared a document, referred to as a draft certificate, but which he produced in evidence and adopted. It contained the following statements:
"4 I have been advised that Mr Dare was, prior to his motor vehicle accident, a bricklayer's labourer.
5 It is my medical opinion that Mr Dare is wholly disabled in engaging in his usual employment or occupation as a consequence of his motor vehicle injury on the 27th of July 1989.
6 Mr Dare is not capable of lifting heavy loads, especially above his shoulders.
7 It is my medical opinion that he is not able to engage in any other type of work which requires physical activity similar to that which a bricklayer's labourer would be required to perform.
8 It is my opinion his present disability precludes him from undertaking any strenuous physical activity where lifting, carrying or other strenuous physical activity is involved."
The form of draft certificate concluded with the following:
"I hereby certify that Mr Joseph Bernard Dare is unfit by reason of his motor vehicle injury suffered on the 27th of July 1989 from engaging in any employment or occupation for which he would otherwise be reasonably suited by education, training, experience or ability."
It was inappropriate to permit Dr Jackson to express that view in evidence as it purported to answer the very question which was to be determined by the Tribunal. In any event, it had no evidentiary value as the draft certificate was silent as to Dr Jackson's understanding of the education, training, experience or ability of the respondent. Quite apart from that, this view was inconsistent with the opinions expressed by Dr Jackson in his report of 3 July 1992 which suggested that the respondent might well be able to engage in some forms of employment or occupation but that the question as to what he could or could not do ought properly to be determined by reference to what might be ascertained from a full functional assessment.
A certain amount of confusion was introduced during the course of Dr Jackson's oral evidence. References were made to rehabilitation, functional assessment and retraining. It appears that Dr Jackson was of the view that a functional assessment of the respondent ought to be carried out so that from that assessment it could be determined what the respondent was capable of doing and that by reference to that it might be determined for what occupations the respondent could be retrained. Nevertheless, the evidence could not be construed as suggesting that a functional assessment could only be used for the purpose of determining appropriate occupations for which the respondent might be retrained. The primary purpose of such an assessment being to determine what it was that the respondent remained capable of doing, it must follow that a possible result could be that the respondent would be determined as being capable of performing the duties of forms of employment not requiring formal retraining. Dr Jackson expressly said that he did not suggest that the respondent was not fit for light to moderate work. His references to rehabilitation do not appear to have extended beyond being descriptive of the functional assessment and any consequent retraining. In no sense could it be suggested, as appears to have been suggested by the learned chairman, that it was the opinion of Dr Jackson that rehabilitation in the form of some sort of treatment was required before the respondent was fit to return to any form of employment. The effect of Dr Jackson's evidence was not that the respondent was not fit to return to any employment until he had undergone rehabilitation and assessment. The effect of his evidence was that he was unable to say what forms of employment might reasonably be pursued by the respondent until such time as he had the result of a full functional assessment and that the result might indicate suitable forms of employment which would require retraining. It is appropriate to observe that the respondent told the learned chairman that Mrs Fitzgerald had mentioned to him the possibility of approaching a government department in connection with rehabilitation, but that he decided not to pursue the matter until the Tribunal had made its determination.
The psychologist, Mrs Fitzgerald, produced and adopted in evidence her report of 20 March 1991 which contained the following material:
"Mr Dare reported that he was employed as a bricklayer's labourer at the rime of the accident. He returned to work for two and a half days following the accident but then stopped work on medical advice. He has twice attempted to return to work but has not been able to manage the lifting associated with this position. It would appear that a rehabilitation program is essential for this man given his age and physical restrictions on him.
Psychological assessment using the MMPI indicates that Mr Dare has become markedly depressed, but that he is defensive and unwilling to acknowledge psychological distress. It also indicates that he is likely to react with increased physical complaints when under stress. Anxiety levels are considered normal.
Mr Dare has been experiencing severe marital disharmony over recent weeks. He reports that the situation has at times become violent and the police have been called. He reports a very poor relationship with his parents–in–law. Mr Dare has recently moved out of the marital home which he has done on many previous occasions, but considers this separation will probably be permanent. It is unlikely that further psychological intervention will prove productive at this point. Mr Dare has declined to attend the group support program.
Mr Dare expresses a desire to re–enter the workforce but is doubtful, in light of his two previous attempts, that he will be able to manage the physical demands of his prior work as a bricklayer's labourer. He has recently attended to undertake activities, eg stacking firewood, that he considers similar to those encountered in his job, but has found that he could only continue for about 20 minutes and suffered high levels of pain afterwards.
In view of Mr Dare's age and the physical constraints placed upon future employment it is considered essential that he undergo a rehabilitation program aimed towards a return to work, perhaps in a physically less demanding role."
Her oral evidence does not appear to have added a great deal to what she said in her report. She did not explain what she had in mind when she referred to a rehabilitation programme. She certainly did not express the view that the respondent was not fit to return to any employment until he had undergone a rehabilitation programme. She said that such a programme, whatever she had in mind by that, was essential before the respondent returned to work, but perhaps in the context of giving him the required motivation rather than overcoming his disablement. She made no mention of any assessment.
Dr Chambers, the respondent's general practitioner, expressed views more in accord with the conclusions drawn by the learned chairman. In his report of 25 September 1991, which was tendered, he expressed the view that the respondent was not then currently fit for any occupation, although during the course of his oral evidence given shortly thereafter, he agreed that the occupation of a parking meter attendant was one which might well be suitable for the respondent. Dr Chambers' view that the respondent was not then fit for any occupation appears to have proceeded from the assumption that by education, ability and training, the only form of employment for which the respondent would be reasonably suited, were it not for his injuries, was that of physical labouring work. As the learned chairman concluded that he was satisfied that the respondent was not fit to return to any form of employment, he did not consider questions of education, training, experience or ability although it was obvious, and it is accepted by the parties, that by reason of those matters the respondent is not suited to employment of a clerical nature or the like. Having expressed the view that the respondent's prognosis was poor, Dr Chambers said the following in his report:
"For the future he may need to reconsider the surgical options offered to him by both Mr Binns and Mr Lydell that is a fusion procedure or a microdiscectomy.
Alternatively or as an adjunct to the above he may benefit from the assessment by a Chronic Pain Management Team such as is provided by the Douglas Parker Centre and this could perhaps be dovetailed with some form of rehabilitation training as appropriate."
Whilst Dr Chambers refers both to an assessment and rehabilitation treatment, he did not do so in the terms stated by the learned chairman.
That examination of the evidence of the three witnesses makes it clear that it was erroneous to suggest that each of them was of the view that the respondent was not fit to return to any employment until he had undergone rehabilitation and assessment and that none of them suggested that the respondent undergo anything which might be described as treatment. The learned chairman erred in so finding. That finding was an essential link in the reasoning process of the learned chairman. Had the learned chairman not erred as to the true effect of the evidence of those three witnesses, he might not have so readily accepted the evidence of the respondent as to the extent of his pain and disability which, to some extent, might reasonably have been thought to have lacked credibility.
It was for the respondent to satisfy the Tribunal on the balance of probabilities that he came within par2(3)(b). It might be thought that the result of a functional assessment would be important evidence on a reference of this nature, being relevant to the very issues which required determination. When the learned chairman said the respondent was willing "to undergo such treatment" it appears that inter alia he referred to the functional assessment. The functional assessment cannot possibly go to the existence of fitness or unfitness for work but only to the ascertainment of the degree of fitness or unfitness for work. Questions of the appellant refusing such an assessment did not arise. It was a matter for the respondent to undergo such an assessment if he chose to do so. The only status of the appellant in that regard would appear to be as to a determination whether the cost of such an assessment ought to be paid for by it. I note that it does not appear to be an item in respect of which scheduled benefits may be paid. A refusal of an injured person to undergo such an assessment might be an important matter going to his credit were he to assert unfitness for any form of work.
The determination of the Tribunal being flawed by the erroneous reasoning of the learned chairman, I am of the view that the determination cannot stand. There remains the question as to what ought to be done about the determination. My powers are limited to confirming, varying or rescinding that determination. I have not yet mentioned the third ground of appeal which asserts that the learned chairman's conclusion that the respondent was not fit to return to any employment was contrary to the evidence. Were that ground to be upheld upon the basis that the evidence was not capable of supporting a conclusion that the respondent brought himself within par2(3)(b), then the appropriate order would be to vary the determination made by dismissing the reference. However, I find it quite impossible to come to any such conclusion. The evidence reasonably admits to a conclusion that the respondent did fall within par2(3)(b). It also reasonably admits to a contrary conclusion. I note that counsel for the appellant did not develop any argument to the contrary.
In those circumstances, I consider that the appropriate order is that the determination of the Tribunal be rescinded. That will leave the reference to the Tribunal undetermined and requiring further determination. Unfortunately, it does not appear as though I have any powers to make orders in relation to such redetermination. However, it is appropriate that I express the view that the learned chairman having made findings of fact, including findings of fact involving matters of credit, it would be appropriate that upon a redetermination of the reference, the Tribunal be constituted by a member other than the chairman thereof.
The formal order of the court will be that the determination of the Motor Accidents Tribunal made 2 July 1992 on a reference to it by Joseph Bernard Dare dated 17 July 1991, be rescinded.
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